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Financial Services Law Insights and Observations


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  • D.C. Circuit: Chinese banks subject to subpoenas in case claiming sanctions evasion


    On August 6, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court ruling that ordered three Chinese banks to comply with subpoenas seeking customer records stemming from a DOJ investigation into a now-defunct Chinese company’s evasion of North Korean sanctions, or face contempt fines each of $50,000 per day. According to the DOJ, the banks allegedly facilitated transactions for the Chinese company that may have operated as a front for the North Korean government in violation of U.S. sanctions. In 2017, the DOJ obtained grand jury subpoenas seeking records related to U.S. correspondent banking transactions of the defunct company from two of the banks with U.S. branches, and served the third bank, which did not have U.S. branches, with a Patriot Act subpoena. After the banks refused to comply with the subpoenas, the district court granted the DOJ’s motion to compel.

    On appeal, the D.C. Circuit concluded that the district court had personal jurisdiction to enforce the subpoenas. The appellate court held that the two banks with U.S. branches consented to jurisdiction when they opened those branches because they had executed agreements with the Federal Reserve which required compliance with relevant provisions of federal law. For the bank without U.S. branches, the D.C. Circuit determined that “it had sufficient contact with the [U.S.] as a whole and the subpoena[] sufficiently related to that contact so as to support the court’s personal jurisdiction.” The court also held that the foreign records sought from the bank without U.S. branches were within the scope of the PATRIOT Act subpoena, noting that the PATRIOT Act authorized the DOJ to issue a “subpoena to any foreign bank that maintains a correspondent account in the [U.S.] and request records related to such correspondent account, including records maintained outside of the [U.S.] relating to the deposit of funds into the foreign bank.” The appellate court also affirmed the district court’s decision to hold the banks in contempt, dismissing the banks’ argument that this move was improper because they had done all they could to obtain approval from the Chinese government to produce the subpoenaed records.

    Courts D.C. Circuit Appellate Sanctions North Korea Of Interest to Non-US Persons Patriot Act Financial Crimes

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  • 6th Circuit: Reversed conviction in alleged mortgage application fraud


    On August 5, the U.S. Court of Appeals for the 6th Circuit reversed the conviction of two individuals for bank fraud, holding that the government had failed to prove that the defendants intended to obtain bank property or defraud the financial institutions that owned the mortgage companies targeted by the scheme. The complaint alleged the defendants—a homebuilder and a mortgage broker—recruited straw buyers to purchase the homebuilder’s homes, in which they obtained more than $5 million from mortgage companies through fraudulent mortgage applications that made several misrepresentations, including overstating the buyers’ incomes and falsely claiming that the buyers planned to live in the homes. During the trial, the government argued that the jury could reasonably infer that the federally insured parent banks controlled the funds, since the mortgage companies were wholly owned subsidiaries of the banks. The government further asserted that the mortgage companies’ funds belonged to the banks because “any losses incurred by the mortgage companies would ‘flow directly up’ to the banks.”

    On appeal, the 6th Circuit reversed the defendants’ bank fraud convictions, holding that the mortgage companies held no federally insured deposits, and that while each mortgage company is a wholly owned subsidiary of a bank, the mortgage companies and the banks are distinct entities. As such, the mortgage companies did not qualify as “financial institutions,” as defined under 18 U.S.C. § 20(1). The appellate court also rejected the government’s arguments because Congress had amended § 20 after the events at issue in the case by adding language covering mortgage lenders to its “enumeration of ‘financial institutions,’” thereby demonstrating that mortgage lenders were not covered by the prior version of § 20. In addition, the court also indicated that the government offered no evidence proving that the defendants sought to obtain bank property “by means of” a misrepresentation, pointing out that no evidence was presented to show that any of the misrepresentations on the loan applications ever reached anyone at the parent banks. As such, “the scheme’s effect on the value of the banks’ ownership interests in the mortgage companies was merely ‘incidental’ to the scheme’s goal of defrauding the mortgage companies.”  Accordingly, the court held that the government failed to prove that the defendants committed bank fraud.

    Courts Sixth Circuit Appellate Mortgages Fraud

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  • 11th Circuit rejects city’s FHA suit against bank


    On July 30, the U.S. Court of Appeals for the 11th Circuit dismissed the City of Miami Gardens (City) Fair Housing Act (FHA) suit against a national bank for lack of standing. This decision was the result of the appeal of a lower court decision previously covered by InfoBytes in June 2018. In the prior decision, the U.S. District Court for the Southern District of Florida granted the national bank’s motion for summary judgment. This was a loss for the City, which had argued that the bank made loans that were more expensive for minority borrowers as compared to non-minority borrowers, resulting in greater rates of default and foreclosure and leading to reduced property values and tax revenue for the City. The district court granted the national bank summary judgment based on the City’s failure to present sufficient evidence of discriminatory lending.

    On appeal, the bank argued that the district court should have dismissed the claims for lack of standing because “‘the undisputed evidence confirmed that none of the 153 loans originated by [the bank] [within the limitation period] foreclosed,’ so the City could not have suffered an injury as a result of any of [the] loans.” The 11th Circuit agreed that the City lacked standing, concluding that the City’s evidence that certain loans may go into foreclosure at some point in the future “does not satisfy the requirement that a threatened injury be ‘imminent, not conjectural or hypothetical.’” Moreover, although the City referenced ten loans that had gone into foreclosure, the appellate court ruled that “the City did not produce any evidence of the effect of these foreclosures on property-tax revenues or municipal spending,” nor that the loans were issued on discriminatory terms.  Accordingly, the 11th Circuit vacated the district court’s award of summary judgment, and held that the district court should have dismissed the action on standing grounds.

    Courts Appellate Eleventh Circuit Fair Lending Disparate Impact Fair Housing Act

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  • 5th Circuit says Congress, not courts, is responsible for changing rules for discharging student loans in bankruptcy


    On July 30, the U.S. Court of Appeals for the 5th Circuit affirmed decisions by a bankruptcy court and a district court to dismiss a borrower’s student loan discharge request under the Bankruptcy Code, holding that Congress, not the courts, is responsible for changing the rules for discharging student loan debt in bankruptcy.

    The borrower, who became unable to make payments on her student loans and other debts, initiated an adversarial action against the Department of Education in bankruptcy court after receiving a general discharge of her debts, in an attempt to have two student loans discharged as well. While the borrower was able to prove that her monthly expenses exceed her income, the bankruptcy and district courts found that she failed the three-prong test for evaluating claims of “undue hardship” established by the 2nd Circuit in Brunner v. New York State Higher Education Services Corp. and adopted in the 5th Circuit in In re Gerhardt. Primarily, the courts stated that the borrower failed to (i) show that she was “completely incapable of employment now or in the future”; or (ii) prove that her present state of affairs was likely to persist through the bulk of the loan repayment period. The borrower appealed, arguing that the three-prong test “is inconsistent with the plain meaning of the term ‘undue hardship’” and urged the appellate court to adopt instead “a ‘totality of the circumstances’ test.”

    On appeal, the 5th Circuit agreed with the lower courts, stating that when Congress amended the bankruptcy law regarding the discharge of federal student loans, the intent was to limit it to cases of “undue hardship” in order to prevent the use of bankruptcy except in the most compelling circumstances. According to the appellate court, until an en banc panel or the Supreme Court reviews the standard, the panel finds no error in the lower courts’ decision. “Policy-based arguments do not change this interpretation; the role of this court is to interpret the laws passed by Congress, not to set bankruptcy policy,” the appellate court wrote. Moreover, reducing the test to a “totality of the circumstances” standard would create an “intolerable inconsistency” in decisions on loan discharges, and expand an area of bankruptcy law that Congress has sought to constrict.

    Courts Fifth Circuit Appellate Student Lending Bankruptcy

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  • 1st Circuit asks Massachusetts high court to resolve foreclosure question


    On July 29, the U.S. Court of Appeals for the 1st Circuit certified to the Massachusetts Supreme Judicial Court the question of whether a national bank’s foreclosure notice was valid under Massachusetts law. According to the order, the appellate court granted the bank an en banc rehearing of its February decision, which concluded that the bank’s foreclosure notice was defective and therefore, it could not properly foreclose the mortgage. The court had reasoned that the notice, which stated that the homeowners “could avoid foreclosure if, but only if, the [homeowners] paid the balance due on or before the specified foreclosure date,” was defective because the mortgage required the homeowners to pay the amount at least five days before the foreclosure date. In its petition for rehearing en banc, the bank argued that a Massachusetts state banking regulation required it to use the specific language it had in the notice and that the panel erred in its reading of existing state court precedent. The appellate court noted that the position is debatable and that in a diversity jurisdiction action the court “cannot properly overturn governing state precedent.” Therefore, the appellate court withdrew its earlier opinion, vacated the judgment, and certified to the Massachusetts Supreme Judicial Court the question of whether the statement in the foreclosure notice would render the notice inaccurate or deceptive, voiding the subsequent foreclosure sale under Massachusetts law.

    Courts State Issues First Circuit Appellate Mortgages Foreclosure

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  • 2nd Circuit: Consumer plausibly alleged discrepancies between collection letters and mortgage note


    On July 22, the U.S. Court of Appeals for the 2nd Circuit affirmed in part and vacated in part a district court’s dismissal of a consumer’s FDCPA claims concerning communications received from a creditor and a collection firm (defendants) related to his defaulted mortgage. The consumer alleged that the letter he received in November 2015 listed an inaccurate amount of debt in violation of FDCPA section 1692g (concerning “initial communications”), and that subsequent letters received were inconsistent because they listed varying amounts of debt. Additionally, the consumer contended that the defendants violated sections 1692e (“false, deceptive, or misleading representations”) and 1692f (“unfair or unconscionable means to collect or attempt to collect any debt”). The district court ruled that the consumer failed to plausibly state a claim or provide factual support for his allegations.

    On review, the appellate court agreed that the consumer failed to state a claim under section 1692g, explaining that “the least sophisticated consumer” would not be misled by the various debt collection letters concerning the amount of the debt. The appellate court emphasized that the consumer ignored the creditor’s acceleration of the underlying mortgage loan—which accounted for the core differences in the communications about the outstanding debt—and rejected the consumer’s allegations that the letters were inaccurate and inconsistent. However, the 2nd Circuit disagreed with the district court, holding that the consumer’s claims under sections 1692e and 1692f survived the defendants’ motion to dismiss because the consumer plausibly alleged discrepancies between the collection letters and mortgage note concerning late fees and charges.

    Courts Second Circuit Appellate FDCPA Fees Debt Collection

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  • 9th Circuit upholds CFTC fraud enforcement power


    On July 25, the U.S. Court of Appeals for the 9th Circuit held that the Commodity Future Trading Commission (CFTC) had the enforcement authority to bring a $290 million fraud action against a trading platform, concluding that the district court improperly dismissed the action. According to the opinion, the CFTC brought an action against a trading platform alleging that it was an illegal and unregistered leveraged retail commodity transaction market for precious metals. The platform moved to dismiss the action, arguing that the Dodd-Frank Act did not give the CFTC the power to pursue stand-alone fraud claims without allegations of manipulation and that the Commodity Exchange Act’s “registration provisions do not apply to retail commodities dealers who ‘actual[ly] deliver[]’ the commodities to customers within twenty-eight days.” The district court agreed, and dismissed the action.

    On appeal, the 9th Circuit concluded the district court erred in dismissing the CFTC’s claims, holding that the CFTC had the authority under Section 6(c)(1) of the CEA to take action against the entity for fraudulently deceptive activity. Specifically, the appellate court held that the CFTC could bring an action for “fraudulently deceptive activity, regardless of whether it was also manipulative,” concluding the district court erred when it interpreted the use of the word “or” in the CEA’s prohibition of the use of “any manipulative or deceptive device or contrivance” to mean “and.” Moreover, the appellate court rejected the platform’s “actual delivery” argument, concluding that the platform’s practice of storing the goods in depositories,  and “maintain[ing] total control over accounts,” with the ability to liquidate at any time, amounts to “sham delivery, not actual delivery.” The appellate court looked to the legislative history of Dodd-Frank and observed that, “[i]f Congress wanted only to ensure enough inventory it could have said so. It did not; it required ‘actual delivery,’” which would require some “meaningful degree of possession or control by the customer.”

    Courts Appellate Ninth Circuit CFTC Enforcement Dodd-Frank Commodity Exchange Act Fraud

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  • 9th Circuit affirms district court’s ruling in FCRA dispute


    On July 24, the U.S. Court of Appeals for the 9th Circuit affirmed a district court’s ruling that the FCRA did not require a consumer reporting agency (defendant) to examine disputed items on an individual’s credit report because the credit repair company—and not the individual—submitted the request to the defendant. Under the FCRA, consumer reporting agencies are required to assess disputed credit file items when a consumer notifies the agency directly. However, the court stated that the plaintiff did not play a part in drafting, finalizing, or sending the letters that the credit repair company sent to the defendant on his behalf, and therefore granted summary judgment in favor of the defendant, ruling that the defendant’s duty to reinvestigate the claims relied upon the plaintiff himself submitting the dispute notifications.

    On appeal, the 9th Circuit agreed with the district court that the defendant “did not act unreasonably” and was correct in entering summary judgment. “This case does not involve a letter sent to a consumer reporting agency by a consumer’s attorney,” the appellate court wrote in clarifying that the holding was limited to the facts of the specific case. “Nor does it involve one family member assisting another by sending a letter on the other’s behalf. It does not even involve a letter sent by a credit repair agency that a consumer reviewed and approved before it was submitted. We do not decide whether, in any of these circumstances, a consumer reporting agency would have a duty to reinvestigate. We only hold that, in this case, where [the plaintiff] played no role in preparing the letters and did not review them before they were sent, the letters sent by [the credit repair company] did not come directly from [the plaintiff].”

    Courts Ninth Circuit Appellate FCRA Credit Reporting Agency

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  • 7th Circuit holds collection fee was authorized by contract, did not violate FDCPA


    On July 19, the U.S. Court of Appeals for the 7th Circuit affirmed the district court’s determination that a percentage-based collection fee was expressly authorized by the contractual agreement and therefore, did not violate the FDCPA. According to the opinion, a consumer entered into a contract with an amusement park for a monthly pass, which stated the consumer would “be billed for any amounts that are due and owing plus any costs (including reasonable attorney’s fees) incurred by [the park] in attempting to collect amounts due.” After the consumer fell behind on payments for the pass, he received a collection letter from a collection agency, seeking the principal amount owed, plus $43.28 in costs to be paid directly to the collection agency or to the amusement park. The consumer filed a class-action lawsuit alleging that the debt collector “charged a fee not ‘expressly authorized by the agreement creating the debt’” in violation of the FDCPA. The district court held a bench trial and found that the collection fee was expressly authorized by the language in the consumer’s contract.

    On appeal, the 7th Circuit agreed with the district court, but noted its decision was in contrast to previous decisions by the 11th and 8th Circuits (both of which have held that percentage-based fees do violate the FDCPA when the underlying contract uses the term “costs.”) The appellate court noted that the contract “allows for ‘any costs,’ and the most reasonable reading of that term is to include fees paid in attempting to collect.” Moreover, the contract “explicitly provided that the term ‘costs’ includes attorney’s fees,” and therefore, the appellate court declined “to hold that the term ‘costs’ bears such a narrow meaning when the contract explicitly tells [the court] that the term is broad enough to include more.” Therefore, the collection fee, according to the appellate court, fell within the contract’s language authorizing “any costs” of the collection and did not violate the FDCPA.

    Courts Seventh Circuit Appellate FDCPA Debt Collection Fees

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  • 3rd Circuit: Debt collector cannot enforce original creditor’s arbitration agreement


    On July 12, the U.S. Court of Appeals for the 3rd Circuit affirmed the denial of a debt collector’s motion to compel arbitration, concluding the debt collector did not establish authority to enforce the arbitration agreement made between the consumer and the original creditor. According to the opinion, a consumer executed a credit card agreement with a creditor containing an arbitration clause. After the consumer fell behind on her payments, her account was referred to the debt collector for collection. The consumer filed suit against the debt collector, alleging that one of the collection letters violated the FDCPA by “failing to inform her whether interest would continue to accrue on her account.” The debt collector moved to compel arbitration based on the provision in the consumer’s credit card agreement with the original creditor, under a third-party beneficiary, agency, or equitable-estoppel theory. The district court rejected each theory and denied the motion, concluding that (i) the agreement did not “evince an intent to benefit” the debt collector; (ii) the FDCPA claim “did not bear a sufficient nexus to the credit-card agreement”; and (iii) the debt collector could not equitably estop the consumer from resisting arbitration under the 3rd Circuit’s previous interpretation of South Dakota law.

    On appeal, the 3rd Circuit agreed with the district court. The appellate court noted that the debt collector failed the test to enforce an agreement as a third-party beneficiary under South Dakota law, because the debt collector failed to establish that the original creditor and its consumers “would not have entered the card agreement but for the intent to benefit debt collectors.” As for the debt collector’s agency theory, the appellate court stated that the debt collector did not cite, and the court did not find, “South Dakota authority adopting a freestanding ‘agency’ theory of third-party enforcement.” Further, the appellate court noted that the debt collector’s arguments would fail under the South Dakota test for equitable estoppel and, therefore, the appellate court had “no basis to conclude that South Dakota would allow [the debt collector], as a non-signatory, to enforce [the original creditor]’s arbitration agreement with its customers.”

    Courts Appellate Third Circuit FDCPA Arbitration Debt Collection

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